The Case for a Safe Harbor Provision of CDA 230 That Allows for Injunctive Relief for Victims of Fake Profiles.

• Author: Bachrach, Camille
• Position: Telecommunications Act of 1996

TABLE OF CONTENTS I. INTRODUCTION 148 II. FACTS OF HERRICK V. GRINDR 151 III. HISTORICAL BACKGROUND OF THE COMMUNICATIONS DECENCY ACT 154 IV. CDA 230's APPLICATION IN CASES REGARDING FAKE PROFILES 158 V. INCONSISTENCY IN THE AVAILABILITY OF INJUNCTIVE RELIEF UNDER CDA 230 160 A. Congress Did Not Enact CDA 230 with Fraud or Impersonation in Mind 162 B. The Reasoning Behind the Exception Would Be Akin to the Reasons that FOSTA-SESTA Was Passed 163 VI. INTRODUCING AN EXCEPTION TO CDA 230 165 A. Pros, Cons, and Effects of the Proposed Exception 168 VII. CONCLUSION 169 I. INTRODUCTION

You join a dating app in hopes of meeting a new fling or love interest, or maybe in hopes of entering into a serious relationship. You swipe a lot. Then you swipe some more. You finally match with someone, and after a few months of talking and dating, you decide to be exclusive. So, you deactivate your dating profile, as it has successfully fulfilled its purpose. Unfortunately, some love stories are not destined to last forever, and your new relationship ends the following year. Right around that time, your ex begins impersonating you on the very app you met on. He creates profiles bearing your actual name with real photos--but lying about almost everything else.

Your new profile now says that you are "interested in 'serious kink and many fantasy scenes []' [and] hardcore and unprotected group sex" among other things. (1) In the span of six months, about 1,100 people respond to this profile. (2) You try and report it to the dating app, but the only response you receive is an "automated, form response," (3) lacking a recommended remedy--and, more importantly, lacking a promise to delete all the fake profiles. So, what can you do? After the Second Circuit Court of Appeals' ruling on March 27, 2019 in Herrick v. Grindr (4)--nothing.

This hypothetical situation reflects some of the facts from Herrick v. Grindr. (5) Last year, the Second Circuit Court of Appeals issued a decision in this case that created yet another way in which interactive computer services are broadly protected by the Communications Decency Act's Section 230 (hereinafter CDA 230) (6) and leaves future defrauded individuals with almost no useful remedies. (7)

CDA 230 immunizes interactive computer services from liability by protecting them from being "treated as the publisher or speaker of any information provided by another information content provider." (8) While legislative history, as well as the additional effects of CDA 230, will be covered in more detail in Sections III, IV, and V of this Note, a brief overview will be useful before reading the facts of Herrick v. Grindr below. (9)

CDA 230 creates protections for providers of "interactive computer service[s]" (10) by not treating them as the original publisher or speaker of content posted by users on their platform. (11) The Act also imposes no liability if they chose not to monitor or restrict access to content considered to be "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable," (12) or, alternatively, if they take any action that "enable[s] and make[s] available to information content providers (13) or others the technical means to restrict access to" (14) such content.

Most courts have interpreted the Act's requirement of "impos[ing] no liability" to mean that in claims against an interactive computer service, injunctive relief cannot be sought. (15) However, this Note will argue that there should be an exception to this immunity for cases of fraud and impersonation. This exception would allow for CDA 230 immunity to be available in these circumstances only if certain requirements are met and a reasonableness requirement is satisfied. If the plaintiff is successful in this showing, then injunctive relief can be a viable option, as one factor that injunctive relief is dependent on is the likelihood of success on the merits of the case. (16) By amending CDA 230 to add this exception, Congress will be changing the requirements of CDA 230 immunity for cases of fraud and impersonation, thus altering the availability of CDA 230 immunity for these types of cases. This Note will advance this exception by using the facts of Herrick v. Grindr (11) as a framework for a situation where the proposed exception would have readily applied and could have been a helpful remedy for the plaintiff.

Section II will provide an overview of the facts of Herrick v. Grindr. (18) Section III will introduce CDA 230 and provide background information for the context of the statute's promulgation and its effects. Section IV will discuss cases concerning fake profiles, CDA 230 immunity, and how the courts have resolved those cases. Section V will provide an overview of the viability and inconsistency of grants of injunctive relief when CDA 230 is being used to immunize an interactive computer service. Additionally, it analyzes whether fraud and impersonation are covered by CDA 230 by looking at congressional intent, legislative history, and differentiating fraud and impersonation from defamation claims. Section VI will introduce the proposed exception for cases of false impersonation when CDA 230 should not apply and thus injunctive relief can be granted.

2. FACTS OF HERRICK V. GRINDR

   Around May 2011, Matthew Herrick (19) joined Grindr (20) and used the app for several years until he and a man named JC began talking and dating around June 2015. (21) In November 2015, Herrick removed his profile off Grindr, as he and JC were becoming more serious. (22) Soon after, JC began impersonating Herrick on Grindr--using a fake profile to talk with other users. (23) However, in June 2016, Herrick found out and successfully convinced JC to stop impersonating him. (24) In August 2016, Herrick began using his personal Grindr account again, and subsequently broke off his relationship with JC around October 2016 due to "JC's abuse and control." (25)

   Once more, JC created a fake Grindr profile impersonating Herrick and this time scheduled "appointments for sexual encounters" between Herrick and other strangers. (26) JC would "manipulate the geo-physical settings" (27) to correspond with Herrick's home and work location and talk to men on the app in order to set up "sex dates" between them and Herrick. (28) JC would tell people that he (acting as Herrick) wanted to have sex and told them where to find him. (29) JC would also tell men on Grindr to "expect [Herrick's] resistance as part of an agreed upon rape fantasy or role play" which added even more danger to Herrick's life. (30) Herrick didn't feel safe inside his own home, had men bang on his window demanding to see him, and had some men refuse to leave "until they were physically escorted off the premises." (31)

   Dozens of men have shown up at Herrick's work and apartment "expecting to have sex" with him and even refusing to leave when Herrick told them his profile is not him but merely an impersonation. (32) Once, when a stranger showed up at Herrick's apartment and was asked to leave by Herrick's roommate, the stranger refused and lunged and wrestled with the roommate. (33) On another occasion, a man showed up at Herrick's place of work expecting to have sex, and upon hearing that Herrick's profile was an impersonation, began screaming various vulgarities and obscenities at Herrick in front of "all the staff, management, and guests...." (34)

   Between November 2016 and January 2017, Herrick reported the fake accounts to Grindr around 50 times. (35) Between January 27, 2017 through March 2017, the fake accounts were reported another 50 times by Herrick, his counsel, or visitors on the site. (36) Grindr has not directly responded to Herrick's reports and have only sent automated replies that say "[t]hank you for your report." (37) Additionally, due to Grindr's silence on the matter, Herrick also filed "approximately 14 police reports and petitioned in Family Court for an order of protection [against JC] to stop the impersonation." (38) In November 2016, he received an Order of Protection against JC, which JC repeatedly violated. (39) Additionally, despite Herrick's multiple reports to the authorities, JC still did not stop. (40)

   Herrick v. Grindr was originally filed in New York State Supreme Court, (41) where Justice Kathryn E. Freed issued an ex parte preliminary injunction and a temporary restraining order ("TRO") against Grindr, compelling them to "immediately disable all impersonating profiles created under [Herrick's] name or with identifying information related to [Herrick, Herrick's] photograph, address, phone number, email account or place of work, including but not limited to all impersonating accounts under the control [of JC]." (42) This TRO expired as a matter of law on February 22, 2017, due to the case's removal to federal court. (43)

   On that date, Judge Valerie E. Caproni, of the United States District Court for the Southern District of New York, heard arguments for extending the TRO but ultimately denied the extension. (44) Judge Caproni found that Herrick had not adequately shown that '"extreme or very serious damage' will flow from denial of [the] injunction." (45) Additionally, Judge Caproni's order stated that previous cases "suggest strongly" that Herrick's attempt to separate Grindr's actions from the protections of CDA 230 was a "losing proposition," and thus Herrick's likelihood of success on the merits was low. (46)

   Specifically, the type of injunctive relief sought was a TRO to impose an affirmative duty on Grindr to monitor and delete the fake profiles bearing Herrick's name. (47) In the Second Circuit, the standard for granting a TRO resembles that of granting a preliminary injunction. (48) Those standards require that the party seeking a TRO "demonstrate '(1) irreparable harm in the absence of the [TRO] and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to...